Trials@uspto.gov
`571-272-7822
`
`Paper 10
`Entered: June 9, 2017
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`MICRON TECHNOLOGY, INC., INTEL CORPORATION, and
`GLOBALFOUNDRIES U.S., INC.,
`Petitioners,
`
`v.
`
`DANIEL L. FLAMM,
`Patent Owner.
`
`____________
`
`Case IPR2017-00392
`Patent 5,711,849
`____________
`
`
`
`Before CHRISTOPHER L. CRUMBLEY, JO-ANNE M. KOKOSKI, and
`KIMBERLY McGRAW, Administrative Patent Judges.
`
`KOKOSKI, Administrative Patent Judge.
`
`
`
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`571-272-7822
`
`Paper 10
`Entered: June 9, 2017
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`MICRON TECHNOLOGY, INC., INTEL CORPORATION, and
`GLOBALFOUNDRIES U.S., INC.,
`Petitioners,
`
`v.
`
`DANIEL L. FLAMM,
`Patent Owner.
`
`____________
`
`Case IPR2017-00392
`Patent 5,711,849
`____________
`
`
`
`Before CHRISTOPHER L. CRUMBLEY, JO-ANNE M. KOKOSKI, and
`KIMBERLY McGRAW, Administrative Patent Judges.
`
`KOKOSKI, Administrative Patent Judge.
`
`
`
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`IPR2017-00392
`Patent 5,711,849
`
`
`I. INTRODUCTION
`Micron Technology, Inc., Intel Corporation, and
`GLOBALFOUNDRIES U.S., Inc. (collectively, “Petitioner”) filed a Petition
`(“Pet.”) to institute an inter partes review of claims 1–29 of U.S. Patent
`No. 5,711,849 (“the ’849 patent,” Ex. 1001). Paper 1. Daniel L. Flamm
`(“Patent Owner”) filed a Preliminary Response (“Prelim. Resp.”). Paper 9.
`We have jurisdiction under 35 U.S.C. § 314.
`Upon consideration of the Petition, Preliminary Response, and the
`evidence of record, we determine that Petitioner has demonstrated a
`reasonable likelihood of prevailing with respect to the unpatentability of at
`least claim 1 of the ’849 patent. As such, we exercise our discretion to have
`the review proceed on all the challenged claims. Accordingly, we institute
`an inter partes review of claims 1–29 of the ’849 patent.
`Related Proceedings
`A.
`The parties indicate that the ’849 patent is at issue in five related
`patent infringement actions. Pet. 4; Paper 7, 2. The ’849 patent previously
`was the subject of IPR2016-00466 (filed by Lam Research Corp., institution
`denied on July 19, 2016), and currently is the subject of IPR2017-00406,
`also filed by Petitioner. Pet. 4.
`The ’849 Patent
`B.
`The ’849 patent, titled “Process Optimization in Gas Phase Dry
`Etching,” is directed to “a plasma etching method that includes determining
`a reaction rate coefficient based upon etch profile data.” Ex. 1001, 1:51–53.
`The method “includes steps of providing a plasma etching apparatus having
`a substrate therein[,]” where the substrate has a film overlaying the top
`surface, and the film has a top film surface. Id. at 1:59–63. It “also includes
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`chemically etching the top film surface to define an etching profile on the
`film, and defining etch rate data which includes an etch rate and a spatial
`coordinate from an etching profile.” Id. at 1:63–67. Steps of extracting a
`reaction rate constant from the etch rate data, and using the reaction rate
`constant to adjust the plasma etching apparatus are also described. Id. at
`1:67–2:2. According to the ’849 patent, the method “provides for an easy
`and cost effective way to select appropriate etching parameters such as
`reactor dimensions, temperature, pressure, radio frequency (rf) power, flow
`rate and the like by way of the etch profile data.” Id. at 1:53–57.
`Figure 1A of the ’849 patent is reproduced below:
`
`
`Figure 1A is an example of an etched substrate. Id. at 3:66–67. Substrate 21
`includes bottom surface 23, sides 25, and top surface film 27, and is defined
`in spatial coordinates z and r. Id. at 3:67–4:2. “[T]op surface film [27]
`includes a convex region, or etching profile.” Id. at 4:3–4. “The etching
`profile occurs by way of different etch rates along the r-direction of
`[substrate 21], corresponding to different etchant species concentrations.”
`Id. at 4:4–6. Concentration profile no(r,z) shows that “the greatest
`concentration of reactant species exists at the outer periphery of [] top
`surface film [27].” Id. at 4:6–9.
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`The ’849 patent describes an embodiment of a method of extracting
`an etch rate constant in which a substrate with an overlying film is placed
`into a plasma etching apparatus, and the plasma etching step occurs at
`constant pressure, and, preferably, isothermally. Id. at 5:11–19. Plasma
`etching of the film stops before etching into an etch stop layer underneath
`the overlying film “[in order] to define a ‘clean’ etching profile.” Id. at
`5:24–26. The plasma etching step produces an etching profile, which
`“converts into a relative etch rate, relative concentration ratio, a relative etch
`depth and the like at selected spatial coordinates.” Id. at 5:28–32.
`Using x-y-z coordinates, the relative etch rate is in the z-direction, and
`x-y are the spatial coordinates. Id. at 5:38–40. “The etching profile is
`thereby characterized as a relative etch rate u, [an] x-location, and a y-
`location u, (x, y),” and an array of data points in the x-y coordinates define
`the etching profile. Id. at 5:40–41, 45–47. An etch constant over diffusivity
`(kvo/D) and an etch rate at the substrate edge is then calculated, where “[t]he
`etch constant over diffusivity correlates with data points representing the
`etch rate profile.” Id. at 5:62–65. After the etch rate constant kvo is
`extracted, the surface reaction rate constant ks can be determined using the
`formula ks = (kvo)dgap, where dgap is the space above the substrate, between
`the substrate and the adjacent substrate. Id. at 3:35–36, 6:58–62, 9:27–29,
`Fig 7.
`Challenged Claims
`C.
`Petitioner challenges claims 1–29 of the ’849 patent. Claims 1, 10,
`20, 22, and 26 are independent. Claim 1 is illustrative, and reads as follows:
`A device fabrication method comprising the
`1.
`steps of:
`
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`
`Exhibit No.
`1006
`
`Alkire
`
`March 1985
`
`1005
`
`providing a plasma etching apparatus comprising a substrate
`therein, said substrate comprising a top surface and a film
`overlying said top surface, said film comprising a top film
`surface;
`etching said top film surface to define a relatively non-uniform
`etching profile on said film, and defining etch rate data
`comprising an etch rate and a spatial coordinate which
`defines a position within said relatively non-uniform
`etching profile on said substrate, said etching comprising
`a reaction between a gas phase etchant and said film; and
`extracting a surface reaction rate constant from said etch rate
`data, and using said surface reaction rate constant in the
`fabrication of a device.
`Ex. 1001, 17:35–50.
`The Prior Art
`D.
`Petitioner relies on the following prior art references:
`Reference
`Description
`Date
`Analysis of Nonuniformities
`Kao
`March 1990
`in the Plasma Etching of
`Silicon with CF4/O2, J.
`Electrochemical Soc., Vol.
`137, No. 3 (1990) 954–960
`Transient Behavior during
`Film Removal in Diffusion-
`Controlled Plasma Etching,
`J. Electrochem. Soc.: Solid-
`State Science and
`Technology, Vol. 132, No.
`3 (1985) 648–656
`The reaction of fluorine
`atoms with silicon, J. Appl.
`Phys., Vol. 52, No. 5 (1981)
`3633–3639
`
`May 1981
`
`1007
`
`Flamm
`
`
`
`
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`E.
`
`The Asserted Grounds of Unpatentability
`Petitioner challenges the patentability of claims 1–29 of
`the ’849 patent on the following grounds:
`References
`Basis
`Alkire and Kao
`§ 103
`
`Challenged Claims
`1–29
`
`Alkire, Kao, and Flamm
`
`§ 103
`
`1–29
`
`
`
`II. ANALYSIS
`
`A.
`
`Claim Interpretation
`The’849 patent has expired. Ex. 1001 at [22] (application filed on
`May 3, 1995); see Pet. 15. For claims of an expired patent, the Board’s
`claim interpretation is similar to that of a district court. See In re Rambus,
`Inc., 694 F.3d 42, 46 (Fed. Cir. 2012). Claim terms are given their ordinary
`and customary meaning as would be understood by a person of ordinary skill
`in the art at the time of the invention, and in the context of the entire patent
`disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir.
`2007). Only those terms in controversy need to be construed, and only to
`the extent necessary to resolve the controversy. See Vivid Techs., Inc. v. Am.
`Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999).
`For purposes of this Decision, based on the record before us, we
`determine that it is necessary to address the interpretation of the claim term
`“surface reaction rate constant” as set forth in claims 1, 5, 10, 14, 20, 22, 26,
`27, and 29.
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`“surface reaction rate constant”
`1.
`Petitioner contends that the term “surface reaction rate constant”
`should be interpreted to mean “a temperature-dependent reaction rate
`constant for the chemical reaction between a gas phase etchant and the
`surface of an etchable material.” Pet. 16. In support of its contention,
`Petitioner notes that the Specification “refers to the term ‘surface reaction
`rate constant’ solely as the constant labeled ks,” and contends that the
`Specification “teaches that ks is a temperature dependent quantity that relates
`the etching rate to the ‘concentration [of gas phase etchant] above an
`etchable material film surface.” Id. at 17 (quoting Ex. 1001, 10:33–35).
`According to Petitioner, “[t]he concentration of the gas phase etchant in
`conjunction with the etch rate provides the reaction rate of the chemical
`reaction,” and, therefore, “ks, which is temperature-dependent, is the
`constant for the reaction rate for the chemical reaction of the gas phase
`etchant and surface material.” Id. Patent Owner does not address the
`interpretation of any of the recited claim terms.
`Based on the record before us, we are persuaded that Petitioner’s
`interpretation is consistent with the ordinary and customary meaning of
`“surface reaction rate constant” as would be understood by a person of
`ordinary skill in the art at the time of the invention, and in the context of the
`entire patent disclosure. Petitioner’s proposed interpretation is also
`consistent with the ’849 patent’s prosecution history, where, as Petitioner
`notes, the applicant “defined the surface reaction rate constant as a
`temperature dependent quantity relating to the chemical reaction between a
`gas phase etchant and the surface of an etchable film.” Pet. 17; see also
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`Ex. 1002, 1101 (“The surface reaction rate constant, however, depends
`predominantly upon temperature, as defined throughout the present patent
`specification, but notably by the equation at page 11 line 16.”).
`Therefore, for purposes of this Decision, we interpret “surface
`reaction rate constant” to mean “a temperature-dependent reaction rate
`constant for the chemical reaction between a gas phase etchant and the
`surface of an etchable material.” Id. at 16.
`B.
`Obviousness over Alkire and Kao
`Petitioner contends that the subject matter of claims 1–29 is
`unpatentable under 35 U.S.C. § 103(a) as having been obvious over the
`combined teachings of Alkire and Kao. Pet. 30–32, 34–77. Petitioner relies
`on the Declaration of David B. Graves (“the Graves Declaration,” Ex. 1003)
`in support of its contentions. Id.
`Overview of Alkire
`1.
`Alkire is directed to the formulation of a mathematical model “to
`analyze transient behavior during film removal from closely spaced wafers
`in a barrel plasma etching reactor.” Ex. 1005, 1.2 “The analysis relates the
`effect of geometric and operating variables to process characteristics such as
`etch uniformity, over-etch exposure, and throughput.” Id. “Regions of
`operating conditions that permit etch uniformity within specified tolerances
`are found, and optimum settings for inter-wafer spacing and reactor pressure
`to achieve maximum throughput are calculated.” Id. Alkire teaches that
`“[e]tch uniformity and throughput are of particular importance in any plasma
`
`
`1 The cited page numbers in Ex. 1002 refer to the numbers added by
`Petitioner in the bottom right corner of the page.
`2 The cited page numbers Ex. 1005 refer to the numbers added by Petitioner
`in the bottom right corner of the page.
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`etching process,” and that “[p]arameters that affect uniformity and
`throughput include RF power input, chamber pressure, gas flow rate and
`distribution, wafer spacing, wafer diameter, and temperature.” Id. at 1–2.
`Alkire Figure 2 is reproduced below.
`
`
`Figure 2 is a schematic of the radially symmetric region between two
`successive wafers that are facing each other. Id. at 2. Before etching begins,
`a uniform-thickness film exists on the wafer surface. Id. “To an extent that
`depends upon operating conditions, the etch rate is highest on the periphery
`of the wafer,” and, therefore, film in this region clears first. Id. Figure 2
`illustrates this, showing that the “film has been cleared entirely from the
`outer portion of the wafer, while the inner region is yet to clear.” Id.
`Alkire makes several assumptions to “preserve the salient features of
`the system and also streamline the task of computation,” including that
`“[t]he spacing between the adjacent wafers is sufficiently smaller than the
`wafer radius so that significant concentration variations occur only in the
`radial direction,” “the etching reaction is first order” and “proceeds to
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`completion at or near the film surface,” and “[t]he concentration of etchant
`at the wafer remains constant during the etch cycle.” Id. Alkire provides
`two governing equations: Equation [1] that gives “the thickness of etchable
`material left at a certain location and time,” and Equation [2] that is the
`conservation equation for the etching species, as set forth below.
`
`
`
`
`Id. Alkire defines h0 as the initial film thickness (cm), k2 as the etch rate
`constant (cm/s), Χ as the moles of etchant species consumed per cm3 of film
`etched (mol/cm3), c as the etchant concentration (mol/cm3), h as the film
`thickness (cm), r as the radial position (cm), t as time (s), D as the etchant
`diffusivity (cm2/s), L as the wafer separation distance (cm), k1 as the volume
`recombination reaction rate constant (cm6/(mol)2/s), A2 as the parent
`molecule, vo as the random thermal velocity of etchant species (cm/s), w as
`the wall recombination coefficient, c0 as the etchant concentration at the
`wafer edge (mol/cm3), and R0 as the wafer radium (cm). Id. at 8–9.
`Alkire then “rewrite[s] the governing equations in terms of
`dimensionless quantities” that it defines, resulting in dimensionless
`Equations [6] and [7]. Id. at 3. According to Alkire, “[b]y solving Eq. [6]
`and [7], the effect of process parameters (c0, P, D, k’s) and of geometric
`factors (L, R0) on etch uniformity, overetch exposure, and total etch time can
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`be determined,” and, “[i]n particular, optimum conditions for high
`throughput can be identified.” Id. Alkire states that these “[d]imensionless
`groupings of system parameters were used to compile behavior and to reveal
`scale-up principles,” and that “[t]he model can be extended without much
`difficulty to handle more complex situations.” Id. at 8. Alkire concludes
`that “[t]he use of mathematical models can assist in organizing scientific
`concepts into strategies for engineering design.” Id.
`Overview of Kao
`2.
`Kao describes experimental and modeling work that “examine[s] the
`effect of reactor pressure, etchant gas flow rate, and wafer location on the
`uniformity of plasma etching silicon using CF4/O2 in a parallel-plate-radial
`flow reactor.” Ex. 1006, 1.3 Kao “presents the results of a series of
`experiments aimed at quantifying the dependencies of etch uniformity on
`process parameters,” and develops a quantitative model that “helps explain
`several trends in the data.” Id.
`Kao measured etch depths at various stages of the experimental
`process, including prior to etching (to measure the initial film thickness) and
`immediately after etching (to measure the amount of film removed), and
`calculated etch rates as etch depth divided by etch time. Id. at 2. Etch rate
`profiles were measured from the point closest to the reactor exit to the point
`closest to the reactor entrance, and plotted as (i) average absolute etch rate at
`any position across the wafer and (ii) etch rates normalized to the minimum
`
`
`3 The cited page numbers Ex. 1006 refer to the numbers added by Petitioner
`in the bottom right corner of the page.
`
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`etch rate over the wafer in order “to indicate the degree of nonuniformity
`across the wafer.” Id.
`Kao’s model “takes a simplified approach to the plasma etching
`system,” and “assume[s] that plasma etching occurs via three lumped
`reaction steps: (i) dissociation of etchant gas molecules by electron
`bombardment (or chemical reaction with free radicals),” “(ii) a surface
`reaction between the substrate atoms and the reactive etching species
`produced in the plasma, and (iii) chemically reactive species (free radicals)
`recombining to form a nonreactive species through loss reactions.” Id. at 3.
`“Designating k*d to be the rate constant for the dissociation of CF4, ke to the
`rate constant for the surface etching reaction, and kl to be the loss reaction
`rate constant,” Kao gives the rate of reaction in the gas phase for fluorine,
`CF4, and silicon, and the component continuity equations for CF4 and F. Id.
`at 4. Kao ultimately presents its model in dimensionless form in Equations
`[8a-b], which “were solved using the finite element program TWODEPEP.”
`Id. at 5.
`Kao explains that “[t]he unknown reaction rate constants, kl, kd, and ke
`were varied in each call to TWODEPEP to allow minimizing the error
`between the observed and the calculated etch rate.” Id. “The three runs
`which varied flow rate (data of Fig. 3) were used to determine the set of
`three constants.” Id. Kao states that “[t]he agreement is good” between
`observed etch rates and predicted etch rates “at 60 and 80 sccm flow rates,
`with a small deviation observed at 100 sccm near the center of the wafer.”
`Id. Kao observes that “decreasing flow rate enhances the etch rate,” “higher
`pressure resulted in higher etch rates,” and “the location of the wafer has
`only a small effect on etch uniformity.” Id. at 6.
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`Kao concludes that its experimental results “show a large degree of
`nonuniformity in etch rate when etching silicon with CF4/O2.” Id.
`According to Kao, “[a]n approximate kinetic model coupled with a radial
`flow reactor model shows promise in predicting the etch rate
`nonuniformities and the magnitude of the etch rate,” and “[r]ate parameters
`determined by best fitting the model to the experimental data are of
`reasonable magnitudes compared to those reported elsewhere.” Id. at 7.
`Analysis
`3.
`Petitioner contends that the combination of Alkire and Kao discloses
`or suggests all of the elements of claim 1. Pet. 34–47. For example,
`Petitioner contends that Alkire teaches “defining etch rate data comprising
`an etch rate and a spatial coordinate which defines a position within said
`relatively non-uniform etching profile on said substrate” because “[t]he
`thickness of etchable material as a function of time disclosed in Alkire is
`etch rate data, where the change in h(r,t) as a function of time is an etch rate
`at a spatial coordinate (given by r in cylindrical coordinates) over time (t).”
`Id. at 39. Petitioner acknowledges that “Alkire does not explicitly disclose
`measuring the etch rate at any spatial coordinates,” and contends that “it
`would have been obvious to a person of ordinary skill to combine Alkire
`with the experimental measurement of reaction rate and the use of that data
`in modeling as taught by Kao.” Id. In particular, Petitioner contends that
`“Kao teaches measuring the etch rate data for an etching reaction between a
`gas-phase plasma and a substrate at twelve spatial coordinates” and
`“describes measuring the etch depth ‘at various stages of the experimental
`process.’” Id. (quoting Ex. 1006, 2).
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`According to Petitioner, “[a]pplying Kao’s empirical etch rate
`measurements at twelve distinct spatial coordinates for analysis of a plasma
`etching model to the plasma etching techniques and model of Alkire would
`allow a person of ordinary skill in the art to use empirical data to improve
`the Alkire model for plasma etching.” Pet. 41. Petitioner argues that “Kao
`specifically discloses, and a PHOSITA [person having ordinary skill in the
`art] would have recognized, that Alkire provides a robust model for the
`reaction between a gas phase etchant and a substrate film, but that no
`experimental data to support or inform the model was provided.” Id. at 30.
`Thus, Petitioner argues, “[a] PHOSITA would have been motivated to
`improve the model disclosed in Alkire by using experimental data to provide
`independent confirmation of the accuracy of the model as taught in Kao.”
`Id. at 30–31 (citing Ex. 1003 ¶ 115). Petitioner further argues that “Kao
`teaches that its experiments were intended to build upon the earlier work of
`Alkire in analyzing the use of a barrel plasma etcher to etch a film in an
`ashing model,” and that “Alkire teaches that its analysis applies both to the
`ashing method as well as the silicon etching in CF4 modeled in Kao.” Id. at
`32 (citing Ex. 1006, 1; Ex. 1005, 2).
`We are persuaded, based on the current record, that Petitioner’s
`discussion of the particular operations and structures in Alkire and Kao, and
`the explanations in the Petition and the Graves Declaration, are sufficient to
`establish a reasonable likelihood that Petitioner would prevail in
`demonstrating that claim 1 would have been obvious over the combined
`teachings of Alkire and Kao. Petitioner’s contentions are supported
`adequately by Dr. Graves, who testifies, for example, that Alkire “teaches
`essentially the same mathematical model for the etch rate reaction that the
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`849 Patent uses,” and explains that when “the same mathematical model is
`used to describe the etch process, the solutions should be the same.”
`Ex. 1003 ¶ 96; see also id. ¶¶ 97–98 (demonstrating that the two arguments
`of the Bessel functions in Alkire and the ’849 patent are the same, the
`models predict the same results, and ks in the ’849 patent is the same
`reaction rate constant as Alkire’s k2).
`We have considered Patent Owner’s arguments and, based on the
`record before us, do not find them to be persuasive. For example, Patent
`Owner argues that “Alkire specifically teaches away from the use of ‘purely
`empirical programs of development’ (Ex. 1005 at 1), which would teach
`away from the use of etch rate data disclosed by Kao” (Prelim. Resp. 3), and
`that “Alkire specifically teaches away from Dr. Flamm’s invention of the
`’849 patent” because Alkire “advocates use of a pure mathematical model
`without actual etch profile data” and “the ’849 patent relies upon using
`empirical data to improve the fabrication of a device” (id. at 4). The fact
`that Alkire describes a mathematical model does not necessarily mean,
`however, that it teaches away from using experimental data. “A reference
`may be said to teach away when a person of ordinary skill, upon reading the
`reference, would be discouraged from following the path that was taken by
`the applicant.” In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994). A reference
`does not teach away if it merely expresses a general preference for an
`alternative invention from amongst the options available to the ordinarily
`skilled artisan, and the reference does not discredit or discourage
`investigation into the invention claimed. In re Fulton, 391 F.3d 1195, 1201
`(Fed. Cir. 2004). Alkire’s statement that “purely empirical programs of
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`development can be time consuming” does not criticize, discredit, or
`disparage the use of empirical data to improve the fabrication of a device.
`Patent Owner also argues that a person having ordinary skill in the art
`“would have recognized no rational way to combine any etching data from
`Kao with Alkire or any other reference.” Prelim. Resp. 14. According to
`Patent Owner, “a PHOSITA could not combine the etching data from Kao
`with Alkire or any other reference in view of the established knowledge that
`Kao’s chemistries and reactor design would yield a wide range of variation”
`and, therefore, a PHOSITA would not “use results or data from Kao’s
`analysis for the fabrication of any device.” Id. at 6. Petitioner, however, is
`not arguing that a PHOSITA would incorporate Kao’s measured data into
`Alkire’s model; instead, as we understand it, Petitioner is arguing that Kao
`teaches a PHOSITA to conduct experiments to determine etch rate data and
`then extract a surface reaction rate constant from the experimental data, thus
`“connect[ing] the purely mathematical model of Alkire to empirical data for
`the etch rate data to extract the surface reaction rate for defined process
`conditions to test, validate, and improve Alkire’s model.” Ex. 1003 ¶ 136;
`see also id. ¶ 115 (“A person of ordinary skill in the art would have been
`motivated to test and validate the model of Alkire with actual data, as taught
`in Kao.”); Pet. 30–31 (“A PHOSITA would have been motivated to improve
`the model disclosed in Alkire by using experimental data to provide
`independent confirmation of the accuracy of the model as taught by Kao.”);
`id. at 45 (“[A] person of ordinary skill in the art would find it obvious to use
`the empirical analysis of Kao in the similar plasma etching reaction of
`Alkire to test and validate the model of Alkire.”). Patent Owner does not
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`address whether a person having ordinary skill in the art would have looked
`to Kao for this purpose.
`Patent Owner further argues that Petitioner “misinterpret(s) the
`significance of Kao’s ke, which is not a determined reaction rate constant”
`but instead “arises as one of three empirical fitting parameters, each of
`which alone or in combination, fails to reasonably fit Kao’s experimental
`results.” Prelim. Resp. 7. Patent Owner does not provide sufficient
`explanation or evidence to support this argument. Petitioner, on the other
`hand, provides testimony from Dr. Graves that “Kao discloses a ‘reaction
`rate constant for surface etching reaction’ (ke) that is a temperature-
`dependent reaction rate constant for the chemical reaction between a gas
`phase etchant and the surface of an etchable material” (Ex. 1003 ¶ 139), and
`provides analysis setting forth how Kao calculates surface reaction rate
`constant ke from etch rate profile data. Id. ¶¶ 139–143. Therefore, we do
`not find Patent Owner’s unsupported arguments regarding the significance
`of ke as taught by Kao to be persuasive on this record.
`In view of the foregoing, we determine that Petitioner has
`demonstrated a reasonable likelihood of prevailing on its assertion that claim
`1 would have been obvious over the combined teachings of Alkire and Kao.
`Having decided that Alkire and Kao evince a reasonable likelihood that at
`least one of the claims challenged in the Petition is unpatentable, we exercise
`our discretion under 37 C.F.R. § 42.108 to have the review proceed on all
`claims challenged as obvious over the combined teachings of Alkire and
`Kao.
`
`
`
`17
`
`
`
`IPR2017-00392
`Patent 5,711,849
`
`C. Obviousness over Alkire, Kao, and Flamm
`Petitioner contends that the subject matter of claims 1–29 is
`unpatentable under 35 U.S.C. § 103(a) over the combined teachings of
`Alkire, Kao, and Flamm. Pet. 32–34, 77–79. Petitioner presents this ground
`in the alternative to the first ground in the event that the Board adopts a
`construction of “surface reaction rate constant” that requires that it be
`defined by an Arrhenius relationship. Id. at 77. As set forth above, neither
`party has advocated a construction reciting an Arrhenius relationship, and
`we do not construe “surface reaction rate constant” to include this
`requirement. See supra Section II.A.1. Therefore, we need not and do not
`consider Petitioner’s challenge to claims 1–29 based on the combined
`teachings of Alkire, Kao, and Flamm.
`
`
`III. CONCLUSION
`Based on the arguments in the Petition and Preliminary Response, and
`the evidence of record, we determine that Petitioner has demonstrated a
`reasonable likelihood that it would prevail on its challenge that claim 1 of
`the ’849 patent is unpatentable. In keeping with our mission of resolving
`patent validity disputes in a just, speedy, and inexpensive manner, we
`exercise our discretion to institute an inter partes review on all of the
`challenged claims.
`The Board has not made a final determination as to the patentability of
`any challenged claim.
`
`
`
`
`18
`
`
`
`IPR2017-00392
`Patent 5,711,849
`
`
`IV. ORDER
`In consideration of the foregoing, it is hereby
`ORDERED that inter partes review is granted as to claims 1–29 of
`the ’849 patent with respect to the following ground:
`Whether claims 1–29 are unpatentable under 35 U.S.C. § 103(a) as
`obvious over the combination of Alkire and Kao;
`FURTHER ORDERED that, pursuant to 35 U.S.C. § 315(c) and
`37 C.F.R. § 42.4, notice is hereby given of the institution of a trial
`commencing on the entry date of this Decision; and
`FURTHER ORDERED that no ground other than that specifically
`granted above is authorized for inter partes review as to the claims of the
`’849 patent.
`
`
`
`
`
`
`19
`
`
`
`IPR2017-00392
`Patent 5,711,849
`
`PETITIONER:
`
`Jeremy Jason Lang
`Jared Bobrow
`Robert Stephen Magee
`WEIL, GOTSHAL & MANGES LLP
`jason.lang@weil.com
`jared.bobrow@weil.com
`robert.magee@weil.com
`
`Chad Campbell
`Jonathan McFarland
`Philip A. Morin
`PERKINS COIE LLP
`cscampbell@perkinscoie.com
`jmcfarland@perkinscoie.com
`
`David M. Tenant
`Nathan Zhang
`WHITE & CASE LLP
`dtennant@whitecase.com
`nathan.zhang@whitecase.com
`
`
`
`PATENT OWNER:
`
`Christopher Frerking
`chris@ntknet.com
`
`
`
`PATENT OWNER:
`
`Christopher Frerking
`chris@ntknet.com
`
`
`
`
`20
`
`
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